Written by Peter CarterMay 25, 2016
Blood and horror overtook Clive Silwood’s Clontarf home in the minutes that followed the calamity at his front door.
His visitor’s forearm had been sliced open as it smashed through a glass door panel trying to break her fall on his slippery steps.
Silwood aided her to the living room couch as she gasped pleas to fetch their two-week old baby and her older sister from the car.
A neighbour who heard the awful scene rushed to help and nursed her in the bloodbath the room had become.
Her panicked cries were heard by the ambulance dispatcher as bright red gushed continuously from a slashed artery and she drifted in and out of consciousness.
When at about 8.30pm the paramedics arrived amongst the piles of blood soaked towels used to staunch the flow, she was dosed with morphine and ambulanced to Redcliffe Hospital. The trauma confirmed as serious, a rushed transfer followed – from there to the PAH – for microsurgery to her right arm and wrist.
The patient was Kayleen Chandler and she was bringing the baby to her father to look after for the night so she could get a well earned night of sleep.
The injury left Kayleen seriously impaired and financially disadvantaged.
Fast forward from September 2008 to the state’s Supreme Court for the determination of the injury compensation battle she was compelled to wage when Silwood’s public liability insurer refused responsibility for a payout.
Were the steps still wet from Silwood hosing down the area a few hours earlier? Did that make them slippery? Had Chandler slipped on the step or had she tripped herself up?
Had she been drinking? How much? How long before the accident?
The notion she may have been affected by alcohol arose because of an entry in the ambulance notes saying “patient stated she had consumed ‘a lot’ of alcohol this pm.”
And in the hospital admission records: “36-year-old presents following trip on stairs and falls through glass door at top had been drinking all evening three glasses of wine total.”
Neighbour turned nurse, Nora Giammichele, had smelled alcohol on her breath.
Chandler – a light drinker – denied being affected at all by the alcohol. She swore to three half and half red wine & lemonades to supress lactation, drunk a few hours earlier.
Drs Donal Buchanan and Robert Hoskins – both forensic medicine specialists – agreed that “there was no necessary relationship between the smell of alcohol and the state of a person’s sobriety,” and it would have been “very difficult to discern from behaviour whether Chandler was intoxicated or simply suffering shock from loss of blood”.
Chief Justice Cate Holmes rejected the intoxication argument: “Given the effects of shock, her panicked state and morphine dose, I do not think one could safely place any reliance on what she is recorded as having said to the ambulance officer or to the neighbour,” she ruled. “Her evidence is to be preferred”.
Chandler’s statement in the Notice of Claim that she’d had only one glass of wine and lemonade – as opposed to the three she conceded in the witness box – was accepted have as having been more likely the product of “poor taking of instructions” rather than an attempt to trivialise the true account of her alcohol intake.
In any event, “Mr Silwood who knew her well made no such suggestion,” observed Her Honour.
With alcohol ruled out as a contributing factor, Chandler’s account of what occurred was unchallenged.
It was then left to safety engineer Roger Kahler – who conducted a simulation at the same temperature and estimated humidity of the extent of evaporation of pooled water on the offending step – to prove the ‘wetness’ of the ingress.
He was able to convince from a “pendulum test”, that when wet, the surface posed a moderate to high slip risk.
Finally – so held the court – Silwood ought to have a taken measures to ameliorate that risk by ensuring the steps were dry when visitors were expected, or at least by warning them of the potential hazard.
With all the ducks lined up, Justice Holmes ordered the insurer pay Chandler injury compensation to the extent of $650k which had been agreed in advance as the appropriate measure of her loss in the event of a win.
The insurer filed an appeal against the judgment today.